Welsh v Stokes and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Richards,Lord Justice Thomas |
| Judgment Date | 27 July 2007 |
| Neutral Citation | [2007] EWCA Civ 796 |
| Docket Number | Case No: B3/2006/2376 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2007 |
[2007] EWCA Civ 796
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
HIS HONOUR JUDGE TYZACK QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dyson
Lord Justice Thomas and
Lord Justice Richards
Case No: B3/2006/2376
Susan Rodway QC (instructed by Messrs Beachcroft LLP) for the Appellant/Defendant
Richard Stead (instructed by Messrs Lyons Davidson) for the Respondent/Claimant
Hearing date: 20 June 2007
Judgement
Outline of the case
On 31 July 2001, the claimant was riding a 9 year old horse called Ivor on a road near Sticker in Cornwall. She was 17 years of age at the time. She fell off the horse and suffered a serious head injury. She has no memory of the accident. She had been working as a trainee at the defendants' yard since October 2000. The judge found that, although there were some doubts as to her riding abilities, she was competent to ride a “sensible” horse on her own. Ivor was a “sensible” horse with no history of misbehaviour or vice of any kind. The accident occurred at a cross-roads. There were two motorists in the vicinity at the time. Mr Wragg, who gave evidence, was one. The other was an unidentified man, who failed to remain at the scene or leave his name and address. Mr Wragg (and his wife who was travelling with him) did not see the accident. But he said that the other motorist had told him that he had seen the accident. In his second statement, Mr Wragg said that the other man had said that “the horse had reared up, then the girl had fallen off and the horse had fallen onto her.”
The claimant issued these proceedings alleging that the accident was caused by the negligence of the defendants. Further and alternatively, she alleged that the defendants were strictly liable to her pursuant to section 2(2) of the Animals Act 1971 (“the 1971 Act”).
There was a trial on the issues of liability. In a judgment given on 19 October 2006, Judge Tyzack QC dismissed the claim in negligence. But he found that strict liability was established under section 2(2) of the 1971 Act. An essential element of his reasoning was his decision under the Civil Evidence Act 1995 (“the 1995 Act”) to give weight to, and accept the reliability of, the hearsay evidence given by Mr Wragg. Without that evidence, the claimant could not have proved how the accident had occurred and the judge would have been bound to dismiss the claim.
The defendants appeal with the permission of Rix LJ. There are two principal issues. The first is whether the judge was right to give weight to the hearsay evidence. The second is whether the judge correctly applied section 2(2) of the 1971 Act.
The hearsay evidence issue
So far as material, the 1995 Act provides:
“Admissibility of hearsay evidence
1.—(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(2) In this Act—
(a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
(b) references to hearsay include hearsay of whatever degree.
(3) Nothing in this Act affects the admissibility of evidence admissible apart from this section.
(4) The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section.
Safeguards in relation to hearsay evidence
—(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
The judgment
The judge said (para 34) that the hearsay evidence had led to the “greatest difficulty in this case”. One of the difficulties was that there were differences between Mr Wragg's first and second statements. In his first statement, he said that the unidentified man had said: “Apparently, the horse had stepped backwards and then the young girl had fallen off and the horse had fallen onto her.” The claimant's solicitors asked for amplification of this statement. One of the questions asked was: “What exactly the untraced driver said to you about the circumstances of the accident. Did he say that the horse reared, or did he say that it stepped back?” In response, Mr Wragg said in his second statement: “Apparently the horse had reared up and then the young girl had fallen off and the horse had fallen onto her.”
At para 36 of his judgment, the judge referred to the “obvious danger and concern” that the questions had influenced Mr Wragg or led him to change his statement. But in his oral evidence Mr Wragg was “adamant that he was told that the horse was being encouraged to go forward, it did not want to, and so it reared and fell back with the claimant.”
At para 42, the judge turned to the provisions of section 4(2) of the 1995 Act and considered each of paras (a) to (f) in turn. He found that it would not have been reasonable or practicable for the claimant to have produced the unidentified maker of the original statement (para (a)). The original statement was made reasonably contemporaneously with what had happened (para (b)). Mr Wragg's evidence did not involve multiple hearsay (para (c)). There was no evidence that any of the circumstances stated in paragraphs (d),(e) or (f) applied.
The judge said that he had to consider all the facts and determine whether any inferences could reasonably be drawn from them. In deciding which version of the hearsay evidence to accept, the judge also had regard to the evidence of the claimant's father (paras 46 and 47). Mr Welsh said in his statement that he had spoken to Mr Wragg a few weeks or months after the accident and that Mr Wragg had told him that the unidentified man had said: “the horse stepped back—-went backwards. The horse reared and the girl fell off. The horse fell backwards onto her.” As the judge said, this was second-hand hearsay. But it was consistent with the account given by Mr Wragg in his second statement.
There was expert evidence on the question of whether Ivor was likely to “rear”. At para 36 of his judgment, the judge said:
“…..Mr Meade [the claimant's expert] said that, for a horse like Ivor, rearing would not be an option and, moreover, it would be unlikely to happen on one isolated occasion. A horse that naps and rears would be likely to manifest those vices or manifestations of bad behaviour on other occasions, and here there is no such evidence. He was prepared to consider a half rear, which was more credible, but even this, he said, was unlikely. Mr Mackie [the defendants' expert], on the other hand, thought that the description being given of the horse being encouraged to go forward, refusing or napping and then rearing, causing the claimant to fall, pulling the horse down with her, was a credible account and could explain how the claimant became injured. Furthermore, in his written answers, Mr Mackie said this at page 125. He was asked the question:
“Is it a normal characteristic for horses in particular circumstances, namely when spooked by something in front of them, or when agitated or frightened by something in front of them to nap and rear?
Answer: In my view rearing comes within the parameters of normal equine behaviour in certain circumstances. However, many experts will say it can just as well be said it is abnormal behaviour except in certain circumstances. It is not the usual reaction of all horses to rear when spooked by something in front of them, or when agitated or frightened by something in front of them because a horse will usually baulk or nap and if not ridden correctly, attempt to turn and run from the perceived threat rather than to rear.””
The judge set out his conclusions of fact at para 48:
“Applying my mind to these principles, what inferences can properly be drawn from all the evidence I have heard? I find as follows:
1. The claimant was a reasonably proficient rider at the time of her accident, but there were some deficiencies in her ability, as the assessment report of 16 th June 2001 demonstrates. Also when she fell off Tabitha Twitch the impression I have is that she panicked, which perhaps explains why she fell. And the fact that she was referred on 16 th June in the Duchy College assessment must also indicate that there were still question marks over her riding competence. In her Particulars of Claim she paints a picture of her ability which I find to be too pessimistic, but it is, I find, significant that she does paint that picture.
2. I find that the defendants knew that there were question marks over her...
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